In the Arbitration Hearing between

NOMTHANDAZO PRISCILLA MADONDO APPLICANT

and

GAUTENG DEPARTMENT OF EDUCATION RESPONDENT

Applicant’s representative:
Mr Khululekani Xamesi
c/o Ishmail and Dahya Attorneys
Applicant’s address: 57 Third Avenue
Mayfair
2092
Tel: 011 837 0366
Fax: 011 837 0716
E-Mail Address: legal@idalaw.co.za

Respondent’s representative: Ms Barbara Mahlangu
Respondent’s address: Gauteng Department of Education
Private Bag X7710
Johannesburg
2000
Telephone: 011 355 0461
Fax: 011 355 0466

DETAILS OF HEARING AND REPRESENTATION

1. The applicant, Ms Nomthandazo Priscilla Madondo, referred an alleged unfair dismissal dispute in terms of section 191(1) of the Labour Relations Act, as amended (“the LRA”) to the Education Labour Relations Council (“the Council”) on 11 August 2016.

2. The matter was unsuccessfully conciliated and a certificate of non-resolution was issued on 08 September 2016. The matter was set-down for arbitration on 22 November 2016 and it was heard at 20 Goldman Street, ABSA Building, Roodepoort.

3. Mr Khululekani Xamesi, an Attorney from Ishmail and Dahya Attorneys, represented the applicant. Ms Barbara Mahlangu, and IR Officer, represented the respondent, Gauteng Department of Education. The parties submitted bundle of documents and the contents thereof were purported to be what they were. The respondent’s bundle was marked Bundle A and the applicant’s bundle was marked Bundle B.

4. Parties were allowed to call witnesses, cross-examine and re-examine them. At the end of the proceedings, parties agreed that they will submit the closing arguments in writing on or before 29 November 2016. I have received the closing arguments and they have been considered when writing this award.

ISSUES TO BE DECIDED

5. The dismissal of the applicant is not in dispute. I am therefore required to determine the fairness of the applicant’s dismissal. In the event that I find that the dismissal was unfair, I will be required to determine the appropriate relief. The applicant seeks reinstatement as a relief.

6. The applicant’s case turns on the consistent application of the rule and the appropriateness of the dismissal sanction.

BACKGROUND

7. The applicant started working at Sivelile Primary School sometime in 2013 as an Educator. The respondent subjected the applicant to a disciplinary enquiry and subsequently dismissed her on 25 May 2016 for misconduct. The applicant then appealed the disciplinary outcome. However, the disciplinary hearing outcome was upheld on appeal on 20 July 2016. The applicant earned R15 468, 25 per month.

8. The respondent proffered the following charge against the applicant:

“It is alleged that on 16 November 2015, while on duty at Sivelile Primary School, you assaulted your HOD Ms Ngceni, in that you stabbed her with a pen on her face and neck and later used your shoe to beat her with”.

9. The applicant is on record that she is not challenging the procedural aspect of her dismissal. She is only challenging the substantive fairness of the dismissal. The applicant contended that the respondent was inconsistent in the application of the rule and that the dismissal sanction was inappropriate.

SUMMARY OF EVIDENCE AND ARGUMENTS

10. Section 192(2) of the LRA places the burden of proof on the respondent when the existence of a dismissal has been established. Therefore, the respondent has the onus to proof on a balance of probability that the applicant’s dismissal was fair. The respondent called four witnesses to testify in support of its case. All witnesses testified under oath. Their evidence, in summary, follows hereunder.

Respondent’s case

11. Ms Thelma Ngceni (“Ngceni”) testified that she was an Educator and an HOD at Sivelile Primary School and that the applicant was her colleague. On 16 November 2015, she was tasked to remind Educators to submit their assessments. At about 14h00, the applicant came to Ngceni’s classroom with a male colleague named Tshabangu. Apparently Tshabangu was brought by the applicant to be her witness. The applicant used to ridicule Ngceni in front of students and junior Educators, so she requested Tshabangu to leave the classroom. Tshabangu left as requested. Ngceni gave the applicant the reminder again to sign, because the applicant has earlier refused to sign it. At that moment, the applicant grabbed the assessment tool and advanced for the door to leave with it. Ngceni then rushed to the door to prevent the applicant from leaving with her tool. The applicant had a pen in her hand and she started stabbing Ngceni with the pen on her face, neck and upper body. The applicant’s pen broke. She then took out her shoe and started hitting her (Ngceni) with it. The applicant then left her there with bleeding stab wounds. At the Principal’s office, the applicant claimed that she was injured on her thumb. The Principal requested them to write reports about the incident. She opened a case at the police station, but she was requested to withdraw the case.

12. Under cross-examination, she confirmed that on 16 November 2015 she blocked the door to ensure that the applicant did not leave her classroom, but she denied that she strangled or insulted the applicant. She said that she could not wait to report to the Principal that the applicant took her assessment tool, because it was her property. She further stated that she was not charged for the assault incident and that she was shocked when she received a letter on 30 May 2016. (See page 16 of Bundle A in this regard). She denied that she resigned because of the allegations that were pending against her. She tendered her resignation on 31 March 2016.

13. Ms Maria Manala (“Manala”) testified that she presided over the applicant’s disciplinary enquiry sometime around July 2016. She said that she was guided by the Departmental Policies and the Employment of Educators Act in meting out the dismissal sanction. The respondent has a zero tolerance to assault. She stated that the applicant pleaded guilty at the disciplinary enquiry. She asked the applicant if she understood her plea. The applicant confirmed that she understood her plea. She requested the parties to submit mitigating and aggravating factors.

14. Under cross-examination, when asked if there was an explanation of why the applicant pleaded guilty. She stated that the applicant stated that she understood her plea. On why did she not consider hearing evidence after the applicant told her that she was acting in self-defense. She stated that Educators are told that they should walk away if they feel threatened and not to retaliate. Again, if the applicant stated that she had witnesses to prove that she acted in self-defense, she would have allowed her to call witnesses.

15. On re-examination, she stated that she did not dismiss the applicant’s submission that she acted in self-defense, but she also considered that Educators are told that they should walk away if such a situation presents itself. She reiterated that dismissal was the appropriate sanction as the applicant could not be trusted.

16. Ms Nokwazi Nkolongwane (“Nkolongwane”) submitted that she was the HOD at the respondent and that she was called by one Hlengiwe (a domestic worker at the school) telling her that the applicant and Ngceni are fighting in Ngceni’s classroom. When she got to Ngceni’s classroom, Ngceni was sitting, surrounded by other colleagues bleeding from the face, neck and chest and Ngceni could not tell her what happened as she could not speak. Hlengiwe told her that the applicant was in her own classroom. When she went to check on the applicant, she met with the applicant and the applicant told her that she was going to fetch her shoes from Ngceni’s classroom. She requested the applicant not to go to Ngceni’s classroom and she will fetch her shoes. The applicant complied. She then called the Principal who was on her way to school. The Principal called them (the applicant, Ngceni and Nkolongwane) to her office. The Principal saw that Ngceni was bleeding and she asked the applicant where she was hurt. The applicant said that she was hurt on her finger. The applicant did not say how she got hurt. It was not mentioned in the Principal’s office that Ngceni strangled the applicant.

17. Under cross-examination, she stated that when she arrived at the scene of the incident, other colleagues were already there. The applicant was under shock when she saw the applicant. She is not in a position to say if indeed Ngceni strangled the applicant or not.
18. Ms Ntombi Mohlabai (“Mohlabai”) stated that she was the Principal at Sivelile Primary School. She received a call on 16 November 2015 from Nkolongwane telling her that there was an incident at the school and that the applicant has stabbed Ngceni. She called the applicant, Ngceni and Nkolongwane into her office. She asked them what has happened. The applicant did not mention that she was strangled. The applicant said she was injured on her thumb, but she could not see any swelling on the applicant’s thumbs. The stab wounds on Ngceni were visible. She requested them to submit reports detailing what has transpired. At the time (19 November 2016) that she submitted her report to the District Office, she still did not have the applicant’s report.

19. Under cross-examination, she was asked about the report on page 14 of Bundle A; she stated that she did not receive that report. She did not indicate on her report to the District Office that the applicant did not submit her report, but she has witnesses that the applicant did not submit her report. When it was put to her that the applicant did not apologize to Ngceni at the Police Station; she was adamant that the applicant apologized.

Applicant’s case

The applicant, Ms Nomthandazo Madondo, relied only on her testimony and she testified under oath. Her testimony in summary was as follows:

20. On 16 November 2015, she requested Tshabangu to accompany her to submit her assessments to Ngceni. She wanted Tshabangu to be her witness. She first submitted her Life Orientation assessment. The applicant and Ngceni co-signed this assessment. When she was about to submit her EMS, Ngceni stood up and told Tshabangu to leave. Tshabangu left and the applicant requested him to wait for her outside. Ngceni went to the cupboard. The applicant took her exercise book and left. As she was leaving, Ngceni came charging at her. Ngceni pressed the applicant against the chalkboard and strangled her. The applicant tried to scream for Tshabangu, but Tshabangu did not come to her rescue. The applicant used her thumbs to remove Ngceni’s hands from her neck. The applicant does not know what happened to the ballpoint that she had. She managed to free herself and in the process of freeing herself, her shoe got off. Ngceni threw the shoe at her and the applicant threw the other shoe at Ngceni. She managed to escape and she went to Tshabangu to tell him what happened. She then went to her classroom. She requested Hlengiwe to go and fetch her shoes from Ngceni’s classroom. On seeing that Hlengiwe was taking long to come back, she decided to go and fetch her shoes herself. On her way, she met Nkolongwane. Nkolongwane asked her where was she going and requested her that she must go back to her classroom. A police officer came to her classroom and told her that he came to arrest her.

21. When the Principal arrived, they were called into the Principal office. In the Principal office, there was Nkolongwane, Ngceni, Tshabangu, Komane and herself. The Principal asked them what happened. They explained what happened. She was asked to show her injuries. She showed the Principal her injured thumb. They were requested to submit their reports. She submitted her report on 18 November 2015. She then requested to be excused so that she can go to the Police Station to open a case. She apologized to Ngceni for having fought with her, because she knew it was wrong to fight.

22. At the disciplinary enquiry she pleaded guilty, but she was not given an opportunity to state why she pleaded guilty. She pleaded guilty because she felt guilty for having fought with Ngceni. She stated that Ngceni was not disciplined. She does not have any previous warnings. After the incident, she continued working until 28 July 2016. She does not think that the trust relationship is broken. The dismissal sanction was inappropriate because they fought and Ngceni was the one who started the fight, but she was not disciplined.

23. Under cross-examination, she was asked about the memo on page 13 of Bundle A and why would the Department send her the memo to submit her written response if she has already submitted her report to the Principal. She said that she does not know. She said she pleaded guilty to the charge because she knew that it was wrong to fight. She did not mention that Ngceni said that she would kill her. She screamed when Ngceni strangled her, but she could not say why Tshabangu could not hear her.

ANALYSIS OF EVIDENCE AND ARGUMENTS

24. This is an arbitration award issued in terms of section 138(7) of the LRA with my brief reasons. All the evidence and the closing arguments as submitted by the parties were considered when writing this award.

25. It is common cause that there was an assault incident on 16 November 2015. It is also common cause that the applicant pleaded guilty at the disciplinary enquiry. The applicant did not dispute that Ngceni had visible stab wounds on her face, neck and upper body. The applicant alleged that Ngceni strangled her, but there were no visible marks on her neck suggestive of any strangulation. However, the applicant testified that her thumb was injured whilst she was trying to free herself from Ngceni’s strangulation. It was the respondent’s evidence that Ngceni did not strangle the applicant. It is my considered view, based on the corroborated evidence that was submitted by the respondent’s witnesses, that there was no strangulation as suggested by the applicant. In the Principal’s office, the applicant showed only her thumb when she was asked where was she hurt. If indeed the applicant was strangled, she would have also shown her neck. Surely, as per the applicant’s evidence, if Ngceni’s grip was that hard that she (the applicant) could not even scream loud, there was supposed to be marks / bruises on her neck. I therefore find that the applicant’s evidence in this regard is fabricated and it stands to be dismissed.

26. Ngceni stated that when the applicant was about to leave with her (Ngceni’s) assessment tool, she went and blocked the door so that the applicant does not leave her classroom with her assessment tool. The question that begs an answer is: Can Ngceni’s action be construed as assault? In common law, assault is the offence of acting intentionally, that is, with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. It cannot be argued that Ngceni’s action was not intentional and that the applicant did not have a reasonable apprehension of an immediate harmful or offensive contact. I have considered Ngceni’s evidence that she has been tamed by the Departmental policies not to be involved in physical altercations with her colleagues. However, the applicant could not have known what Ngceni’s intentions for blockading her way were. Indeed, the applicant could have apprehended imminent danger on her person.

27. Again, Ngceni’s action of blockading the applicant’s way is indistinguishable to provocation. In her own words, Ngceni stated that “she stood firmly by the door in front of the applicant”. Provocation is defined as conduct by which one induces another to do a particular deed. It is the act of inducing rage, anger or resentment in another person to engage in an illegal act. It is therefore my finding that Ngceni provoked the applicant and the applicant reacted aggressively and illegally by stabbing her. This surely suffices to be considered as self-defense. Manala, the presiding officer in the applicant’s disciplinary enquiry, testified that the respondent has a zero tolerance to assault and that the respondent has consistently dismissed employees who were found guilty of assault. There was no evidence to disprove this and as such I do not have any reason to disbelief that indeed this is the case.

28. The respondent wrote a memo (page 13 of Bundle A) to the applicant on 25 November 2015 regarding the allegation of assault. This memo sought the applicant to write her submissions detailing why the Department should not take actions against her. The applicant submitted her report (page 14 of Bundle A) to the respondent on 02 December 2015. In her report, she stated in paragraph 7 that she had no choice but to defend herself against Ngceni. On 27 May 2016, some six months later, the respondent wrote a memo to Ngceni regarding the allegations of assault on the applicant. This was after the applicant had already received the outcome of her disciplinary enquiry on 25 May 2016. Important to note is that Ngceni was never subjected to a disciplinary enquiry. According to the respondent, Ngceni was exonerated of any wrongdoing during the investigations. What the respondent failed to consider when vindicating Ngceni of any transgression, is that Ngceni, in her own admission, blockaded the applicant’s way. Ngceni’s action, as mentioned above, constitutes an assault, but the severity thereof, is not comparable with the assault meted out by the applicant.

29. It would be unfair to treat people who have committed similar acts of misconduct differently – it would be unfair to treat people, who have committed similar acts of misconduct, by a different standard, or measure the seriousness of the act of misconduct by a different standard than the standard that was applied to others who have committed the same act of misconduct.

30. Inconsistency is often either historical or contemporary. Historical inconsistency is where the respondent has had a number of employees who have all committed the same act of misconduct at different times and those employees have not been measured by the same standard – the same disciplinary procedure has not been applied. Thus, historical consistency – would show that in the past, each time the same act of misconduct was committed by different employees, the employer applied the same standards of measurement and followed exactly the same disciplinary procedure in each case.

31. Contemporaneous consistency means, very simply, “collective consistency.” To break this down even further, it means that in instances of collective misconduct, where a number of employees have committed an act of misconduct at the same time, then each employee involved in that collective act of misconduct must be treated the same and by the same standard, and the same procedure must be applied to all.

32. Contemporaneous inconsistency would come about where two or more employees have committed the same act of misconduct at the same time, but not all are subjected to a disciplinary action. Or where some would be subjected to a certain disciplinary procedure and a different disciplinary procedure would be invoked for others. Consistency does not necessarily mean that the same sanction must be applied in every instance of the same act of misconduct – it means that the same procedure must be applied in addressing similar instances of the same act of misconduct. This is because usually, the sanction to be applied is decided according to the circumstances of the matter, and the personal circumstances of the employee, including matters such as service record and previous disciplinary record, plus various other mitigating, aggravating and extenuating circumstances. Thus, the act of misconduct can be the same, the evidence may even be the same or similar in two separate incidents of the same act of misconduct, but the circumstances can differ vastly.

33. The legal principles applicable to consistency in the exercise of discipline set out in Schedule 8, Item 7(b)(iii) of the Code of Good Practice: Dismissal establishes as a guideline for testing the fairness of a dismissal for misconduct whether “the rule or standard has been consistently applied by the employer.” This is often referred to as the “parity principle”, a basic tenet of fairness that requires like cases to be treated alike. A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element – an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator (see, for example, Gcwensha v CCMA & others [2006] 3 BLLR 234 (LAC) at paragraphs [37]–[38]).

34. The objective element of the test to be applied is a comparator in the form of a similarly circumstanced employee subjected to different treatment, usually in the form of a disciplinary penalty less severe than that imposed on the claimant (see Shoprite Checkers (Pty) Ltd v CCMA & others [2001] 7 BLLR 840 (LC) at paragraph [3]). Similarity of circumstance is the inevitably most controversial component of this test. An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors. For this reason, it is my finding that in the present case the respondent acted consistently in the manner it applied discipline between Ngceni and the applicant Consequently, I find that the respondent has, on a balance of probability, succeeded in discharging its onus.

AWARD

I therefore make the following award:
35. The applicant’s dismissal was procedurally and substantively fair.

36. The applicant’s claim stands to be dismissed. The Council is ordered to close this case file.

Themba Manganyi
Arbitrator
12 December 2016